NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 31 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
AMY COBURN, No. 09-15837
Plaintiff - Appellant, D.C. No. 2:07-cv-00662-KJD-LRL
v.
MEMORANDUM *
PN II, INC., doing business as Pulte
Homes; PULTE HOME CORPORATION;
PULTE HOMES, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted March 10, 2010
San Francisco, California
Before: HUG, REINHARDT and BYBEE, Circuit Judges.
Plaintiff-Appellant Amy Coburn was Area Vice President for Product
Development for Defendant-Appellee PN II, Inc., the Nevada Area operations of
Pulte Homes, Inc., a Michigan homebuilding corporation (collectively, “Pulte”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
After Coburn was terminated, she sued Pulte for: (1) unlawful sex discrimination
under 42 U.S.C. § 2000e-2(a) and Nevada Revised Statute § 613.330;1 and (2)
unlawful retaliation under 42 U.S.C. § 2000e-3(a) and Nevada Revised Statute
§ 613.340. The district court granted summary judgment in favor of Pulte with
respect to Coburn’s discrimination and retaliation claims, and Coburn now appeals
both of these decisions.2 We review these determinations de novo, drawing all
reasonable inferences in favor of Coburn in order to decide whether Coburn has
established a genuine issue of material fact for trial. See Porter v. Cal. Dep’t of
Corr., 419 F.3d 885, 891 (9th Cir. 2005). We reverse.
I
We apply a system of shifting burdens in discrimination cases. “The
plaintiff bears the initial burden of establishing a prima facie case.” Bergene v.
Salt River Project Agric. Improvement and Power Dist., 272 F.3d 1136, 1140 (9th
1
A claim for unlawful discrimination under Nevada Revised Statute
§ 613.330 is assessed under the applicable federal anti-discrimination law. See
Apeceche v. White Pine County, 615 P.2d 975, 977-78 (Nev. 1980).
2
Coburn also briefly argues that Pulte failed to comply with Rule 56-1 of the
Local Rules of Practice for the District of Nevada by “fail[ing] to provide the
required concise statement of material facts that it alleges are not in dispute.” We
reject this argument, as district courts have “considerable latitude in managing the
parties’ motion practice and enforcing local rules that place parameters on
briefing.” Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002).
2
Cir. 2001). If the plaintiff meets this burden, the burden shifts to the defendant to
prove that the plaintiff was discharged “for a legitimate, nondiscriminatory
reason.” Id. at 1141. If the defendant makes such a showing, “[t]he burden then
shifts back to [the plaintiff] to show that [the defendant’s] proffered reason was a
pretext for discrimination.” Id.
A
To state a prima facie case of discrimination, a plaintiff must show that: “(1)
she belongs to a protected class, (2) she was performing according to her
employer’s legitimate expectations, (3) she suffered an adverse employment
action, and (4) other employees with qualifications similar to her own were treated
more favorably.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.
1998). The district court held that Coburn failed to establish the second and fourth
elements. We hold that Coburn satisfied the “minimal” degree of proof necessary
to establish these elements at the summary judgment phase. Wallis v. J.R. Simplot
Co., 26 F.3d 885, 889 (9th Cir. 1994).
1
Coburn presented sufficient evidence to raise a genuine issue of material fact
as to whether she was performing according to Pulte’s legitimate expectations.
First, she presented evidence that she was given excellent performance reviews for
3
her first year of employment under Sheryl Palmer, and was awarded a salary
increase and a bonus due to this performance. This evidence is important because
of Coburn’s allegation that Pulte actually made the decision to fire her at the time it
fired Palmer, and simply because of the striking disparity between Coburn’s
performance evaluations before and after Palmer was fired, from which a jury
could reasonably infer that there were illegitimate factors playing into the
evaluations of Coburn. Second, Coburn presented evidence that she was
performing well after Palmer was fired, including Matt Koart’s statement that she
had completed her 2005 MBO goals with “flying colors” and Sean Degen’s
statement that Coburn’s performance was “excellent and superior to [her] male
counterparts.” The jury could reasonably give Coburn’s evidence of her positive
accomplishments more weight than Koart’s and Degen’s highly subjective
criticisms of Coburn’s “leadership,” “credibility,” and the “perception” of
Coburn’s performance.
In holding that Coburn failed to establish the second element of her prima
facie case, the district court appeared to rely completely on the fact that Coburn
failed to demonstrate a mastery of Pulte’s design manual. However, the question
of whether Coburn was performing according to Pulte’s legitimate expectations
requires an analysis of her performance as a whole, and a jury could reasonably
4
have placed little weight on Coburn’s failure to memorize an intricate product
manual in light of her host of other accomplishments. Rather than viewing the
evidence in the light most favorable to Coburn, the district court seemed to fully
accept Pulte’s contentions regarding Coburn’s performance. This was error.
2
The district court provided two reasons for holding that Coburn failed to
establish that similarly situated males were treated more favorably: (1) Coburn’s
male predecessor and her male counterpart in Arizona were terminated for poor
performance; and (2) of the seven female executives in Coburn’s Las Vegas office
who eventually left Pulte, only Palmer and Coburn were terminated for
performance reasons.
Coburn presented sufficient evidence to raise a triable issue of fact as to this
prima facie element. Coburn presented evidence that the four males on Palmer’s
original executive team were neither terminated for performance reasons nor given
poor performance ratings. In contrast, three females from Palmer’s team were
terminated, and one female had been receiving lower performance ratings at the
time of her resignation than she had previously. Moreover, Coburn alleged that
only women were invited to a meeting in which Patrick Beirne, according to
Coburn, berated the female executives and stated that he “was tired of the ‘General
5
Hospital’ atmosphere in Las Vegas.” Finally, the fact that Coburn was replaced
with a male is especially important evidence to demonstrate that similarly situated
males were treated more favorably. The jury was entitled to weigh these facts
against Pulte’s evidence that Coburn’s male predecessor (who was fired before
Palmer) and her male counterpart in Arizona (who never worked in the Nevada
Area) were terminated for poor performance.
B
Coburn concedes that Pulte satisfied its burden of providing a legitimate,
non-discriminatory reason for her termination by alleging that Coburn was
terminated because of her poor performance. Thus, the burden shifts back to
Coburn to show that Pulte’s non-discriminatory reason for termination was a
pretext for discrimination, see Godwin, 150 F.3d at 1220, which Coburn may
satisfy “using either direct or circumstantial evidence,” Coghlan v. Am. Seafoods
Co. LLC, 413 F.3d 1090, 1094-95 (9th Cir. 2005). We need not address whether
Coburn has presented direct evidence of discrimination, because Coburn has
presented sufficient circumstantial evidence to survive summary judgment.
First, the district court erred in applying the “same-actor inference” to
Coburn’s case. See Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th
Cir. 1996). Although Degen was involved in both the hiring and firing of Coburn,
6
he was not the only person involved in these decisions and was not even Coburn’s
direct supervisor at the time of these decisions. Rather, Coburn reported directly to
Palmer at the time of her hiring and directly to Koart at the time of her firing.
Thus, it was unreasonable for the district court to assume that a lack of
discriminatory animus at the time of Coburn’s hiring makes it unlikely that
discriminatory animus was present at the time of her firing. Moreover, the
termination of Coburn did not “occur within a short period of time” after her
hiring, id. at 270-71, but rather occurred almost two years after she was hired.
Coburn has presented “specific and substantial” circumstantial evidence to
survive summary judgment, Coghlan, 413 F.3d at 1095, most of which is similar to
the evidence constituting her prima facie case, see Chuang v. Univ. of Cal. Davis,
225 F.3d 1115, 1124 (9th Cir. 2000). First, by raising a genuine issue of fact as to
the quality of her performance, Coburn has presented evidence that Pulte’s
“proffered explanation for the adverse action”—Coburn’s performance—“is
unworthy of credence.” Coghlan, 413 F.3d at 1095 (quotation marks omitted).
Second, Coburn’s evidence (discussed above) “that similarly situated male
employees were treated more favorably is itself probative of pretext.” Davis v.
Team Elec. Co., 520 F.3d 1080, 1092-93 (9th Cir. 2008). Finally, various alleged
comments by males in Pulte bolster Coburn’s case that the performance rationale
7
for her termination was a pretext: (1) Degen’s supposed reaction when Coburn
complained to him about the meeting with Beirne (“you say yes sir, may I have
another, yes sir, may I have another”); (2) Degen’s statement that Petruska “looks
at every female in this division and completely tied them to [Palmer]”; and (3)
Beirne’s “General Hospital” comment. Although Petruska and Beirne were not
directly involved in the firing of Coburn, a jury could reasonably determine that
these executives had some influence on the decision of their subordinates—Koart
and Degen—to fire Coburn, and that therefore this decision was influenced to
some degree by gender discrimination. Viewing the totality of Coburn’s evidence,
we hold that district court erred in granting summary judgment to Pulte on
Coburn’s discrimination claim.
II
The burden-shifting scheme in a retaliation case is much the same as that in
a discrimination case. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th
Cir. 1997). “In order to make out a prima face case of retaliation, a plaintiff must
show that (1) she was engaging in protected activity, (2) the employer subjected
her to an adverse employment decision, and (3) there was a causal link between the
protected activity and the employer’s action.” Bergene, 272 F.3d at 1140-41.
Coburn indisputably satisfied the first two elements. She alleged two forms of
8
protected activity: voicing opposition to Beirne’s purportedly discriminatory
behavior and complaining to Degen about Petruska’s comment that he was tired of
the “whiny bitches in Las Vegas.”3 She alleged three adverse employment actions:
negative performance evaluations, being placed on a performance improvement
plan (“Work Plan”), and her termination. However, the district court held that
Coburn failed to establish the element of a causal link between her protected
activity and the adverse employment actions. We disagree.
We “have held that causation can be inferred from timing alone where an
adverse employment action follows on the heels of protected activity.” Davis, 520
3
For the purposes of Coburn’s discrimination claim, the “whiny bitches”
comment is inadmissible hearsay. Coburn alleged that she had learned of this
comment from Palmer, who had allegedly heard it from Degen, who had allegedly
heard it from Petruska. Palmer could testify in court about a statement that Degen
said Petruska made to him under the exception to the hearsay rule for admissions
by party-opponents, because Degen (a national vice president) had authority to
make admissions on behalf of Pulte and this statement goes against the interests of
Pulte. See FED. R. EVID. 801(d)(2). However, Palmer did not submit any sworn
testimony to the district court that she heard about the “whiny bitches” statement
from Degen, and Coburn may not rely upon the possibility of Palmer testifying
about this statement in court to satisfy summary judgment. Furthermore, Coburn’s
own sworn testimony that she heard this statement from Palmer is inadmissible,
because Palmer herself is not a party-opponent; rather, she was fired from Pulte.
However, regarding Coburn’s retaliation claim, the district court erred in
holding that the “whiny bitches” comment is inadmissible. For the purposes of this
claim, the comment is not offered to prove the truth of the matter asserted—that is,
to prove that Petruska actually said it—but simply as evidence that Coburn voiced
opposition to a statement that she considered to be sexually discriminatory and
suffered retaliation as a result.
9
F.3d at 1094 (quotation marks omitted). The timing of the adverse employment
actions—all three of which, importantly, are causally related to each other—is
evidence from which a reasonable jury could infer causation. The meeting with
Beirne occurred on June 22, 2005, and Coburn immediately expressed her
opposition to Machado and Degen. On December 5, 2005, less than six months
following this opposition, Koart sent Coburn an email criticizing her, and on
December 19, 2005, Degen gave Coburn a “below expectations” performance
evaluation. Coburn told Degen about Petruska’s “whiny bitches” comment on
February 13, 2006, and Degen placed Coburn on the Work Plan that same day,
about eight months after Coburn’s voiced opposition to Beirne’s comments.4 Most
importantly, Coburn was terminated on April 25, 2006, a little over two months
after she told Degen about the “whiny bitches” comment. All of these time periods
4
The district court noted that although Degen emailed the Work Plan to
Coburn on the same day that she told him about the “whiny bitches” comment,
“the email references a conversation he had with her concerning the plan a week
earlier,” and “Degen testified that it took him approximately 30 days to draft.”
Thus, the district court concluded that there could not have been a causal link
between Coburn’s complaint about the “whiny bitches” comment and the Work
Plan. The district court is technically correct, but this point does not seriously
undermine an inference of causation. For one thing, Coburn was fired two months
after she complained about the “whiny bitches” comment. Furthermore, the Work
Plan and Coburn’s termination can be considered to be an outgrowth of Coburn’s
poor performance evaluations, which occurred less than six months after Coburn
voiced her opposition to Beirne’s comments.
10
are within a range that can properly support an inference of causation. See
Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003); Allen v. Iranon, 283
F.3d 1070, 1078 (9th Cir. 2002). Moreover, even if temporal proximity were
lacking, Coburn provided “circumstantial evidence of a pattern of antagonism
following the protected conduct,” Porter, 419 F.3d at 895 (quotation marks
omitted), including her allegation that when she told Degen about Beirne’s
comments, he responded, “you don’t, you don’t talk back you say yes sir, may I
have another, yes sir, may I have another.”
As with her discrimination claim, Coburn concedes that Pulte satisfied its
burden of providing a non-retaliatory reason for her termination by alleging that
Coburn suffered the adverse employment actions due to her poor performance.
However, Coburn presented sufficient evidence that Pulte’s non-retaliatory reason
for terminating her was a pretext for the same reasons as with her discrimination
claim. Thus, the grant of summary judgment on this claim was error.
REVERSED.
11